Jehu Hand v. Vitaminspice et al

Filing 7

(IN CHAMBERS) ORDER by Judge Josephine Staton Tucker: Remanding case to ORANGE COUNTY SUPERIOR COURT, Case number 30-2012 00563900. Accordingly, the hearing set for July 6, 2012, at 2:30 p.m. is VACATED. Case Terminated. Made JS-6 (Attachments: # 1 TRANSMITTAL) (rla) Modified on 6/21/2012 (rla). (Mailed certified copy of this Order and public docket to OCSC 6/21/12.)

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JS-6 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 12-850-JST (PJWx) Title: Jehu Hand v. Vitaminspice, et al. Date: June 20, 2012 Present: Honorable JOSEPHINE STATON TUCKER, UNITED STATES DISTRICT JUDGE Nancy Boehme Deputy Clerk ATTORNEYS PRESENT FOR PLAINTIFF: DEFENDANT: Not Present N/A Court Reporter ATTORNEYS PRESENT FOR Not Present PROCEEDINGS: (IN CHAMBERS) ORDER REMANDING CASE TO ORANGE COUNTY SUPERIOR COURT, CASE NO. 30-201200563900 Before this Court is a Motion to Remand filed by Plaintiff Jehu Hand (“Plaintiff”). (Doc. 4.) Plaintiff filed this action against Defendant Vitaminspice (“Defendant”) in Orange County Superior Court on April 23, 2012, Case Number 30-2012-00563900. On May 25, 2012, Defendant removed this action on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Not. of Removal, Doc. 1.) The Court finds this matter appropriate for disposition without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. R. 715. Accordingly, the hearing set for July 6, 2012, at 2:30 p.m. is VACATED. At the outset, the Court notes that, in accordance with the Local Rules, any opposition was due by June 15, 2012. See C.D. Cal. R. 7-9 (requiring an opposition brief to be filed not later than twenty-one days before the hearing). To date, Defendant has not filed any opposition. Local Rule 7-12 holds that “failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion.” C.D. Cal. R. 7-12. Accordingly, Defendant’s failure to oppose is deemed consent to remand. As discussed below, the Court also concludes that remand is appropriate because the Court lacks subject matter jurisdiction. When reviewing a notice of removal, “it is to be presumed that a cause lies outside the limited jurisdiction of the federal courts and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th ______________________________________________________________________________ CIVIL MINUTES – GENERAL 1 JS-6 ____________________________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SACV 12-850-JST (PJWx) Title: Jehu Hand v. Vitaminspice, et al. Date: June 20, 2012 Cir. 2006) (internal quotation marks omitted)) (alterations omitted). Courts “strictly construe the removal statute against removal jurisdiction,” thus “the defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam). “[W]here the plaintiff has pled an amount in controversy less than [$75,000], the party seeking removal must prove with legal certainty that jurisdictional amount is met.” Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 1000 (9th Cir. 2007). Here, Plaintiff’s Complaint clearly indicates that he seeks damages in the amount of $70,415.66. (Not. of Removal, Ex. 1.) In an attempt to clear the jurisdictional threshold, Defendant argues the amount in controversy exceeds $75,000 because the defendant has “compulsory counterclaims in the hundreds of thousands of dollars.” (Not. of Removal, ¶ 3.) However, Defendant has not filed any counterclaim or provided any facts to support this assertion. Therefore, Defendant has not shown with legal certainty that the amount in controversy exceeds the jurisdictional requirement. Accordingly, the Court concludes that it lacks subject matter jurisdiction and REMANDS this case to Orange County Superior Court. Initials of Preparer: nkb ______________________________________________________________________________ CIVIL MINUTES – GENERAL 2

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